ChIPs Global Summit Report 1: Supreme Court stalemate and career planning with the Federal Circuit

Mallun Yen kicking of the first day of the Summit
with a run through of the year's achievements in IP and
diversity progress

The AmeriKat has known about the incredible work of ChIPs for several years (thanks Dad!), but only this year did the opportunity arise for her attend the 2016 ChIPs Women in Tech, Law and Policy Global Summit held in Washington D.C.  Now with 1200 members, ChIPs was founded in 2005 dedicated to advancing women at the confluence of law, technology and regulatory policy, with the objective of increasing diversity and inclusion in these fields to enable the progress of innovation that benefits society.  The Annual Summit focuses on key legal developments, innovation and leadership skills.  Membership is open to anyone who shares the ChIPs mission and the AmeriKat encourages all to join.

On Wednesday, the AmeriKat was invited to speak at the Inaugural ChIPs Next Gen Summit which is dedicated to providing the next generation of women leaders in tech, law and policy with strategies and tools to help propel them in the first fifteen years of their careers on topics including profile-raising, social media and career pathways.  The session was held after the pre-Summit mock exercise before members of the judiciary, government and agencies, as well as in-house executives, who provided feedback to the eager advocates.  This year the mock was on the topical issue of a patent damages trial, with numerous teams facing off against each other.

After a slow Uber ride back through rush hour DC traffic to the main venue site, Megan Smith - the US Chief Technology Officer (CTO) - was bestowed with the title of 2016 ChIPs Hall of Fame honoree at the Hall of Fame dinner.  After receiving her award, Megan spoke eloquently and passionately about her path from studying science to serving as a Vice President at Google leading New Business Development to her current role at the White House.  Besides being in awe of Megan's professional accomplishments, the AmeriKat was struck by Megan's skill, empathy and passion for her work, public service and fixing social problems with tech.  If we can deliver restaurant food to our house in 25 minutes, why can't we solve other issues?  We need to bring tech solutions to social and environmental problems, urged Megan, and to do this we need to use our passion for our fields to encourage change.  After her fireside conversation with Emily Hostage (RPX), the AmeriKat (like everyone else in the room), left the ballroom in awe of a truly inspirational leader that reminded us to look beyond the legal brief on our desk and to use our skills and energy in our wider community and world.

This morning the main Summit kicked off with a welcome from Mallun Yen (Executive VP of RPX and co-founder of ChIPs) running through the year's IP news from the fair use decision in Google v Oracle, the new Defend Trade Secrets Act and emergence of once dormant patent assertion entities, but she also focused on the gender and diversity issues that continue to face the tech sector (more on that later).

Fireside Chat with Nina Totenberg and Jamie Gorelick

Noreen Krall holding her fireside chat with Nina Totenberg
and Jamie Gorelick

Noreen Krall (VP, Chief Litigation Counsel at Apple) moderated the morning's fireside chat with the AmeriKat's inspiration Nina Totenberg (Legal Affairs, Correspondence at National Public Radio) and Jamie Gorelick (Partner, WilmerHale and Board Director, Amazon.com).  The first topic was the Supreme Court who, Nina commented, are doing the best they can, but they cannot do as much as they could (perhaps should, suggests the AmeriKat), such as deciding certain cases, because they are tied.  For example, cases concerning important election issues about voting procedure are not being decided.  The passing of Justice Scalia and lack of replacement has hobbled the Supreme Court, she noted.  "The odds are not good in confirming the President's nominee, Merrick Garland", she continued.  For all practical purposes, the Republican opposition has effectively killed off two terms of Supreme Court decisions.  Jamie mentioned that the executive appointments are also dormant.  The Senate has entirely defaulted in its job to confirm nominees - the backlog is astounding.  Jamie commented that many government agencies who have nominees in the chute, those nominees never come out of the chute.  Jamie said that it would be preferable for there to bi-partisan agreement to hold hearings and get the nominations through so work can continue.  However, in an election year the agencies are essentially told not to make news in case it is used as political fodder in the campaign cycle.  Thus, the US is finding itself in a stalemate.

Noreen asked how the social media and 24/7 hour news cycle has impacted news.   Nina said that there is an appetite for instant reliable news, in depth reporting and images/sound, but no one wants to pay for it which is a real problem.  Raising the importance of accurate reporting, Jamie commented that when the Affordable Care Act decision (listen to Nina's comment here) was announced by the Supreme Court, the initial reports stated that the entire law had been overturned.  Jamie's husband, who is a physician, said that he did not understand the initial reports.  Ten minutes later, Nina reported on NPR to explain what it really meant.  Nina explained a reason for the misreporting is that reporters often grab the decision as soon as it comes out, run down the court's steps and then they start reporting, without necessarily taking the time to fully understand the decision.   Nina said that this is why she goes to listen to the court announcement to pick up on the key issues.

Jamie, who has an incredible background having practised law for over 40 years including acting as a Deputy Attorney General of the US and as General Counsel at the Department of Defense, noted the changes to law firm practice are tremendous.  She explained that firms are acting increasingly like businesses, outsourcing litigation work streams such as document review to low cost centers.  The economics and size of private practice law is changing because the bottom of the pyramid work (i.e. discovery) can be outsourced and the real value of legal services, at the top of the pyramid with creative, strategic legal thinking, is becoming increasingly competitive.  However, Jamie said she was not wringing her hands about these changes, but embracing them as the next evolution in legal practice.

Nina and Jamie also shared stories of being the first women in their respective fields, including an entertaining story from Nina about her, Cokie Roberts, Linda Wertheimer and Susan Stamberg who sat in a corner of the newsroom that the men referred to as "the fallopian jungle".  She said that they did not care for/about that term, because it was her Old Girls' Club that was breaking the stories that the men weren't getting.

Federal Circuit Judge Panel

Star studded panel of Circuit Judges

A star studded panel of Federal Circuit Judges followed, with the Circuit Judges sharing stories of their career trajectories and advice to the audience.  The AmeriKat was struck by the sheer number of women judges from one court that deals with patent cases and looks forward to the day when the English Patents Court has a similar composition.

Chief Judge Sharon Prost (US Court of Appeals for the Federal Circuit) shared a story about a lunch she attended a few years ago.  Someone at the lunch asked Justice Kagan how she felt to be the first woman Dean of Harvard Law School and Solicitor-General.  Justice Kagan responded that it was an odd question to ask because if she had not taken those jobs, it would have been someone shortly behind her that did.  She said it was really women like Justice Ginsburg who paved the way so that by the time she got to the table it was not that hard.   For the IP judges, Chief Judge Prost said their Justice Ginsberg was Judge Pauline Newman (also on the panel).

Judge Kimberly Moore echoed the sentiment when she said that her generation of women lawyers have far more opportunity and flexibility to shape their careers to achieve a purposeful work/life balance than previous generations.  There are more opportunities but you have to plan - this is important.  Judge Kara Stoll agreed explaining that at certain points in her career she had to make decisions about what path she wanted to pursue - litigation v prosecution, district v appellate work - and that required active decision making.  You cannot let your career happen to you, she explained, you need to take active control and direct your career.  Judge Newman said her career path was less purposeful - she went to law school because it was next door to where she lived.  However, Judge Newman, when explaining her work with UNESCO in 1962, explained that your career path is not always linear - you need to take the opportunities that come to you.  Judge O'Malley agreed stating that although she originally had an idea of how to plot her career path to become a federal judge, there was actually no linear career path.  You have to deviate, be flexible and take chances to get to where you want to.

When asked what their core values were, the judges where unified in saying it was kindness.  It is so easy, especially in the legal profession where work becomes all-consuming, to think that what you do is all important.  However, it is not.  You need perspective and you need kindness.  Chief Judge Prost explained that a woman who worked in the Senate cafeteria who she knew over twenty years ago recently came up to her at a conference and said "hello".  Chief Judge Prost was surprised the woman remembered her, but the woman replied that "of course I did, you were always so nice to me."   That feedback is more important than any other success. Judge Stoll echoed the sentiment explaining that of course what we do as lawyers and patent litigators is important, but its not just what you do  - it is how you do it.  It does not take much to be very kind to the people around you.

The AmeriKat will be back with reports on the latest Defend Trade Secrets Act strategy, issues in copyright and the problem with dual-track systems and patent validity finality.